ing his residence and association. Mack Dean had testified for the defendant that he had seen him several times on the day of the killing and had been in his company frequently for several days prior thereto; that the defendant was very drunk on the day of the killing, and had been drinking heavily for several days; that defendant had told him on a day prior to the killing that he did not have any gun and wanted to borrow one because he was afraid to travel from the car line to the house where he slept. In response to questions asked him on cross-examination, the witness testified that he had married a woman who ran a whorehouse and later had been divorced from her; that a scar which was on his face was the result of a fight in the whorehouse. It is always competent to interrogate a witness on cross-examination touching his present or recent residence, occupation, and association. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. ers was a nonresident of the state of Ar- fendant that the court erred in permitting kansas, and his attendance at the trial could cross-examination of witness Dean concernnot be compelled under the process of the court. Sprinkles was also a nonresident of the state, and was therefore beyond the jurisdiction of the court. It is true that a certificate of a physician was presented to the court, showing that the witness was sick and unable to attend court; but this is not sufficient to show that his voluntary attendance at court could have been procured. His deposition might have been taken, under the statute, and no excuse for not doing so is shown. The court offered to permit defendant to read the affidavits of both these witnesses, taken by his attorney at Ft. Smith some time prior to the trial. The defendant proved by a lawyer in attendance at court that he had known Lon Peevey for about ten years; that he lived south of Alma and was a farmer; that it had been four or five years since he saw him last; and that he did not know where he is now. The witness was a resident of Ft. Smith, and said that he had not seen him in Ft. Smith lately. There is nothing to show that Lon Peevey was the same person as W. L. Peevey, who had been subpoenaed to attend the trial of this case. For aught that appears from the record, the W. L. Peevey that was subponaed as a witness in this case may have been a nonresident of the state and beyond the jurisdiction of the court. At least, there is nothing in the record to show that he lived within the jurisdiction of the court, or that his attendance could have been procured if the case had been continued. It is well settled in this state that the continuance of a trial in a criminal case is within the sound discretion of the trial court, and that the refusal of the trial court to grant a continuance will never be ground for a reversal of a judgment of conviction unless it clearly appears that there has been an abuse of such discretion and that it manifestly operates as a denial of justice. Miller v. State, 94 Ark. 538, 128 S. W. 353; Jackson v. State, 44 Ark. 496. [2] It is next assigned as error that the court erred in excusing J. A. Wagoner, a juror who had been accepted by both sides to try the case. Wagoner was the fifth juror selected, and at the time of his selection the defendant had exercised only seven peremptory challenges; but, at the time he was excused by the court, eight jurors had been selected, and the defendant had exercised fifteen peremptory challenges. The juror became suddenly ill after he had been accepted, and, on account of his illness, was excused by the court. We have held that it was within the discretion of the court to excuse a juror on account of sickness. Caughron v. State, 99 Ark. 462, 139 S. W. 315. Therefore the court did not err in excusing the juror. [3] It is next contended by counsel for de [4] The next assignment of error is that the judgment should be reversed because the court refused to compel Trice, a witness for the state, to show a memorandum to defendant's counsel. Trice was an eyewitness to the killing, and was by occupation a carpenter. It appears that while he was being cross-examined by defendant's counsel in regard to the width of the counter, shelving, etc., in the saloon where the killing occurred, he refreshed his memory by referring to a memorandum of measurements which he had himself made. The questions and answers show that the witness was referring merely to a memorandum of some figures he had made of his own accord of the width of the counter, shelving, etc., in the saloon. Under these circumstances, the court did not err in refusing to permit the defendant to have said memorandum submitted to the jury for their inspection. 1 Wigmore on Evidence, § 673. [5-9] It is next insisted by counsel for defendant that the court erred in giving instruction No. 17, at the instance of the state, which is as follows: "A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing he has made statements different from his present testimony, or by evidence that his general reputation for truth or morality renders him unworthy of belief. "But the jury are the sole judges of whether the witness has been impeached, and if an impeached witness is corroborated the jury may still take his testimony, notwithstanding the impeachment, and are judges of his credibility, and may take and consider it, if they believe he has sworn truthfully although he is impeached. "If the jury believe any witness has sworn falsely to any material fact, they may disregard the whole or any part of his testimony." The objection urged to the instruction by the defendant is that the third paragraph warranted the jury in disregarding testimony it believed to be true if it came from a witness whom the jury believed had sworn falsely to some other material fact. They cite, in support of their contention, Frazier v. State, 56 Ark. 242, 19 S. W. 838; Taylor v. State, 82 Ark. 540, 102 S. W. 367; Bloom v. State, 68 Ark. 337, 58 S. W. 41. It is true that an instruction standing by itself in substantially the same form as the third paragraph of instruction No. 17 was condemned in the cases cited by defendant. The reason given was that, before you can disregard the testimony of a witness for false swearing, the false swearing must be willfully done; and, moreover, the instruction might be construed as warranting the jury in disregarding the testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. In the case of Darden v. State, 73 Ark. 315, at page 320, 84 S. W. 507, at page 508, the court said: "The exception to the instruction given by the court on his own motion and copied in this opinion was general. The objection urged against it in this court is that the court said a reasonable doubt is one for which a juror could give a reason, if called upon to do so. If this be a defect, which we think it was, it should have been reached by a specific objection. It is one the court would have doubtless readily remedied if its attention had been called to it. The objection extended to the whole instruction, consisting of four paragraphs, and, one or more of these being sufficient, it should not have been sustained. See St. L., I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255 [45 S. W. 550]." In the application of the rule there announced to the present case, we do not think the judgment should be reversed for the error complained of. No specific objection was made to the instruction, but only an objection made to it as a whole. The instruction is in three paragraphs. The first paragraph is a correct declaration of the law. No objection is urged by the defendant to the second paragraph, and we can perceive none to it that would not have been cured by a specific objection. The first part of the second paragraph of the instruction tells the jury, if an impeached witness is corroborated, the jury may still take his testimony, notwithstanding the impeachment. This was wrong, because it was the duty of the jury to receive and consider the testimony of the witness, notwithstanding his impeachment, if they believed his testimony to be true; and the jury are, in effect, told this in the latter part of the paragraph. In effect, the second paragraph told the jury that they were the judges of the credibility of the witnesses, and that they must take and consider the testimony of any witness, if they believe he has sworn truthfully, although he may be impeached in one of the manners provided by law. The third paragraph of the instruction, if standing alone, would be objectionable, under the rule laid down in the cases cited by counsel for defendant, supra, and would be reversible error; but when we consider that the objection extended to the whole instruction, consisting of three paragraphs, and that the remaining paragraphs were not open to any valid objection, we are of the opinion, under the rule announced in the case of Darden v. State, supra, the objection to the third paragraph of the instruction should not be sustained and the judgment reversed, for the reason that the defect contained in it should have been met by specific objection. We think that, when the whole instruction is read together, it, in effect, tells the jury that they are the judges of the credibility of the witnesses, although one or more of them had been impeached, and that if they believe a witness has sworn falsely in part and truthfully in part they should reject that portion which they believe to be false and accept that part they believe to be true. See, also, Bennett v. State, 95 Ark. 107, 128 S. W. 851. It is next contended by counsel for defendant that the court erred in giving instruction No. 12, which is as follows: "No one, in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden rencounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, or in a mortal combat, is justified or excused in taking the life of the assailant, unless he is so endangered by such assaults as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and must have employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He cannot provoke an attack or bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary on the ground of self-defense. He cannot invite or voluntarily bring upon himself an attack with the view of resisting it, and, when he has done so, slay his assailant, and then shield himself on the assumption that he was defending himself. He cannot take advantage of a necessity produced by his own unlawful and wrongful act. After having provoked or invited the attack, or brought on the combat, he cannot be excused or justified in killing his assailant for the purpose of saving his own life, or preventing a great bodily injury, until he has, in good faith, withdrawn from the combat, as far as he can, and done all in his power to avoid the danger and avert the necessity of the killing." "The court charges you that a necessity either actual or apparent, as explained in the instruction in this case, is the sole ex cuse which will justify the taking of human, even manslaughter. This court has held life." [10] It is conceded by counsel for defendant that this instruction is taken from Carpenter v. State, 62 Ark. 286, 36 S. W. 900; but it is contended that the instruction is erroneous because, according to the testimony of the defendant, he was assaulted by the deceased with a murderous intent when he entered the saloon, and he was therefore under no obligation to retreat. The instruction, as given, was predicated upon the evidence adduced in behalf of the state. The theory of the defendant was fully covered by other instructions given by the court, and it is well settled that all phases of a case cannot, and need not, be contained in one instruction. Therefore the court did not err in giving this instruction. that where a jury believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter. Allison v. State, 74 Ark. 444, 86 S. W. 409; Brooks v. State, 85 Ark. 376, 108 S. W. 205. But, as we have already stated, the court, in the first paragraph of the instruction, was dealing exclusively with the question of selfdefense, and in other instructions given defined manslaughter and told the jury under what circumstances the defendant would be guilty of that offense. We do not think the court erred in giving this instruction. [13] Finally, it is insisted by counsel for defendant that the judgment should be reversed because the court arbitrarily curtailed the time allowed the defendant's counsel within which to argue the case. Before be [11, 12] It is also contended by counsel for defendant that the court erred in giving instruction No. 11, which is as follows: "Before the defendant can justify the kill-ginning the argument, the court and ating of deceased upon the grounds of self-defense, it must appear to him at the time as a reasonable person that the danger of losing his own life or receiving a great bodily injury at the hands of the deceased was so urgent and pressing that the killing was necessary to save his own life, or prevent his receiving great bodily injury. He must have acted with due caution and circumspection. If there was no danger, and his belief of the existence thereof be imputable to negligence, he is not excused, however honest the belief may be. He must have used all reasonable means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing the deceased. "It must also appear that the deceased was the assailant, and began the encounter which resulted in his death, or that defendant had really and in good faith endeavored to decline any further contest before the mortal injury was given. "If the defendant willfully and of his malice aforethought, and after premeditation and deliberation, killed the deceased, Tony Bly, while laboring under a sense of wrong or some indignity, real or fancied, that the deceased had done him, he would be guilty of murder in the first degree." torneys agreed on 4 hours on each side, which the attorneys stated to the court they would divide as follows: That W. A. Bates, for the prosecution, should take 1 hour, and A. A. McDonald and Paul Little, for the prosecution, 11⁄2 hours each; and for the defendant, T. N. Sanford and Ben Cravens 2 hours each. T. N. Sanford opened for the defendant, and lacked 25 minutes of consuming the 2 hours allotted to him for his argument. Mr. Cravens, the other counsel for the defendant, requested the court to allow him in his argument to use the time remaining to Mr. Sanford, which the court refused to do. Counsel for the defendant, having specifically agreed to the amount of time that was to be used by each one in making his argument to the jury, are not now in an attitude to complain that the court refused to allow Mr. Cravens to use the time which had not been consumed by Sanford in his opening argment for the defendant. If the court had allowed 4 hours to the defendant, then he would not have had any right to direct how much of this time should be consumed by each attorney; but the attorneys would have the right to divide the time as best suited them. But, for the reason that they agreed in advance as to how much time should be consumed by each of them, the defendant is not now in an attitude to complain that the court did not grant Cravens the right to use the time that had been allotted to Sanford. They say that the first paragraph of this instruction told the jury in substance that, if there was really no danger to the defendant at the time of the killing, no matter how honest such belief of danger was in his mind, if such belief was imputable to negligence, the defendant would be guilty of murder. We do not think the first paragraph of the instruction conveyed any such impression | considered them carefully, and have reached upon the minds of the jury. That paragraph of the instruction dealt exclusively with the question of justification, and did not, in any way, touch upon the subject of murder, or Other assignments of error have been urged upon us for a reversal, but we do not deem it necessary to discuss them. We have the conclusion that the case was fairly tried upon proper instructions given by the court, and that the evidence warranted the verdict. Therefore the judgment will be affirmed. ROSS v. VELTMANN et al. (Court of Civil Appeals of Texas. San Antonio. Dec. 10, 1913. Rehearing Denied Jan. 7, 1914.) 1. INJUNCTION (§§ 163, 188*)-RESTRAINING ORDER DISSOLUTION TIONS. CHANGED CONDI Where, after the issuance of a temporary restraining order, a sworn answer is filed showing changed conditions that no longer entitle complainant to an injunction, the court may properly dissolve the same, taxing against defendant the costs incident to the proceedings so far as necessary to give complainant the relief to which she is entitled; complainant's further rights depending upon the changed conditions. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 357-371, 408; Dec. Dig. §§ 163, 188.*] 2. HIGHWAYS (§ 30*)-ESTABLISHMENT-NoTICE-RECORD. It is not essential to the legality of proceedings for the establishment of a highway that the character of the notice given be made a matter of record, but it is sufficient if a proper notice is given or notice has been waived. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 60-70; Dec. Dig. § 30.*] 3. INJUNCTION (§ 118*)-PLEADING-REQUI 7. HIGHWAYS (§ 41*) ESTABLISHMENT VIEWERS' REPORT HEARING BY COMMISSIONERS' COURT. In proceedings to establish a third class road, it was not necessary that the commissioners' court should pass on the report of the jury of view at the first term, or at a reg ular term of such court. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.*] 8. HIGHWAYS (§ 41*) ESTABLISHMENT VIEWERS' REPORT-HEARING-ORDER-MODIFICATION-NOTICE TO LANDOWNER. Where an order of the commissioners' court, adopting the report of the jury of view in third class highway proceedings, was held by the district court, at the suit of a property owner, to be defective in certain particulars, it was not necessary that such landowner be notified of the court's intention to pass a new order to cure the defect. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.*] 9. INJUNCTION (§ 122*)-SUPPLEMENTAL PETITION-VERIFICATION. Where a supplemental petition in an injunction suit alleged a new ground for injunctive relief, it should have been verified. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*] Appeal from District Court, Kinney County; W. C. Douglas, Judge. Suit by Virginia Ross against Jos. Veltmann and others. Decree for defendants, and complainant appeals. Affirmed. Martin & Martin, of Uvalde, for appellant. MOURSUND, J. On May 21, 1913, appellant submitted to Hon. W. C. Douglas, judge of the Sixty-Third judicial district, her petition, under oath, praying that upon final hearing an order of the commissioners' court of Kinney county, establishing a road across 4. HIGHWAYS (§ 38*)-ESTABLISHMENT-No- a section of land owned by her, be vacated TICE OF HEARING-OBJECTIONS-WAIVER APPEARANCE. An objection to notice of intention to lay out a highway, in that it was signed by only one member of the jury of view, was waived by the landowner's appearance pursuant to the notice. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 93-97; Dec. Dig. § 38.*] 5. HIGHWAYS (§ 41*)-ESTABLISHMENT-REPORT OF VIEWERS. Where the jury of view in highway proceedings were only authorized to lay out a third class road, their report was not fatally defective because it recited the laying out of a "road" instead of a "third class road," since no other kind of a road could be legally establish ed thereunder. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.*] 6. HIGHWAYS (§ 41*) ESTABLISHMENT VIEWERS' REPORT HEARING BY COMMISSIONERS' COURT. In proceedings for the establishment of a third class road, the law does not require notice to the landowner of the date of the hearing by the commissioners' court, on the report of the jury of view, since the owner, having received notice from the jury, must follow up the proceedings in the court. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 90, 108-131; Dec. Dig. § 41.*] and annulled, and that a temporary injunction issue restraining Jos. Veltmann, county judge of Kinney county, Hans Petersen, Albert Schwandner, L. N. Lewis, and A. M. Slator, the other members of the commissioners' court of said county, and T. F. Scarborough, from interfering with her fence and opening up said road. The order establishing the road was alleged to be void on the grounds: (1) The road was classified as a "community road." (2) The width of the road was not stated. (3) The notice received by plaintiff from the jury of view gave plaintiff no notice that a community road was to be laid out across her land. (4) No road overseer was appointed by the court who would be authorized to apportion hands to work the road. (5) The jury of view was appointed to lay out a third class road through plaintiff's land, but the court classified and established a community road. It was further alleged that defendant Scarborough had been employed by the commissioners' court to remove plaintiff's fences and open up the road. Judge Douglas granted a temporary restraining order, but refused to grant a temporary injunc For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 161 S.W.-68 $15 as damages. A certified copy of the order attached to the petition shows that the width of the road was fixed at 30 feet. It was further alleged that a warrant had been drawn in favor of plaintiff for $15 and placed in possession of the county treasurer of Kinney county subject to her demand. On June 16, 1913, plaintiff filed her first supplemental petition, consisting of a general demurrer to defendants' answer, various special exceptions thereto, and an answer to the effect that plaintiff had no notice of the intention of the commissioners' court to pass the order entered on June 2, 1913, and had no opportunity to contest the same, wherefore in the alternative for all costs because of she prayed as in her original petition, and the proceedings taken by the commissioners' court after the filing of her petition. Upon consideration of the case as made by the additional pleadings, and after hearing argument, the judge refused the temporary injunction, and dissolved the temporary restraining order. Plaintiff appealed. tion until a hearing could be had after notice | a “third class road" and allowing plaintiff to defendants, stating in his order that the petition showed, by allegation and inference, that all requirements necessary to legally lay out a third class road had been complied with, except that no classification was made of the road, and no width ascribed to it, and that if this was correct, it would be his duty to forbid the opening of the road until the two requisites named were complied with. He concluded that the classification as a community road was no classification because such a road is not recognized by statute, and that no "neighborhood road" was authorized because the road did not follow section lines. On June 7, 1913, the defendants answered by general demurrer, three special exceptions, a general denial and a special answer, containing the following allegations: That at the regular February term, 1913, of said commissioners' court, said court upon its own motion passed an order to establish a third class road, leading from the town of Brackett to the Tom Perry ranch, and appointed a jury of view to lay out and survey said road, [1] The contention made by appellant's pethe names of the members of the jury of tition, briefly stated, was that the order esview being stated; that proper and legal no-tablishing a community road was null and tices were issued to said members of the jury of view, and legally served upon them by the sheriff of Kinney county and due return made thereon, said notices being attached to and made part of the answer; that four members of the jury of view, naming them, subscribed the oath prescribed by law, their said oaths being also attached to the answer; that before said jury of view laid out and surveyed the road complained of by plaintiff Scarborough, one of the members of the jury of view issued to J. E. Fritter, the agent of plaintiff, the proper and legal notice required by law to be given to owners of land over which the road to be established would run or be likely to run, stating at the time the date when the jury of view would lay out and survey said road, an affidavit of said Scarborough to that effect being attached to the answer; that on February 26, 1913, said four members of the jury of view proceeded to survey and lay out the road, and made their report, a copy of which was attached, in which the road was described; that when said jury of view met to assess the damages to the landowners over whose lands said road was laid out, Fritter, plaintiff's agent, was present and failed and refused to submit any claim for damages; that on May 12, 1913, the report of the jury of view was approved by the commissioners' court of Kinney county, the field notes of the road recorded in the minutes of said court, damages allowed plaintiff in the sum of $15, and the road classified as a "community road," but on June 2, 1913, said court in special session rescinded and annulled said order, and passed an order approving the report of the jury of view, establishing and classifying the road as void, both because no such road is known to our statute, and because there was no order appointing a jury of view to lay out that kind of road; and the notice given appellant by the jury of view did not disclose that a community road was to be laid out. These contentions were sustained by the court. Later it was made to appear to the court by sworn answer that a new order had been entered by the commissioners' court, establishing a third class road upon the same report of the jury of view, whereupon he refused to grant a temporary injunction, and dissolved the temporary restraining order. Even when a temporary injunction has been granted, if it be made to appear by sworn answer that the conditions have changed and no longer entitle plaintiff to an injunction, the judge is authorized to dissolve the injunction. Allen v. Abernathy, 151 S. W. 348. [2] As was correctly held by Judge Douglas, the matter then resolves itself into a matter of costs. Plaintiff has been protected from unlawful acts, and the costs incident tiff the relief to which he was entitled, to the proceeding, in so far as it gave plainshould be taxed against defendant. Any further rights asserted by plaintiff must be based upon conditions then existing, and it must appear that such conditions still entitle plaintiff to relief by injunction; otherwise the appellate court will not set aside the dissolution of the injunction. The question to be considered upon this appeal is whether plaintiff is entitled to have a temporary injunction restraining the opening and laying out of the road established and classified as a third class road by the order of June 2, 1911. Several contentions are made by appellant in this connection, one of which is |